R v Taylor; R v Teekens - [2022] SASCA 79

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v TAYLOR; R v TEEKENS
[2022] SASCA 79
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice David)
11 August 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - MANUFACTURING, PRODUCING OR CULTIVATING - CANNABIS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH
A police raid revealed hydroponically grown cannabis at several residential properties. Following proceedings in the Magistrates Court, five accused were sentenced.
The first respondent, Ms Nicole Taylor, pleaded guilty to Cultivating a Controlled Plant for Sale and was discharged without conviction by the Magistrate upon her entering into a bond to be of good behaviour. The second respondent, Mr Peter Teekens, pleaded guilty to Cultivating a Controlled Plant for Sale, Trafficking in a Commercial Quantity of a Controlled Drug and Interfering with an Electrical Supply. He was sentenced to a period of one year, 10 months and two weeks’ imprisonment, suspended upon his entering into a bond to be of good behaviour.
The Director of Public Prosecutions seeks permission to appeal the sentences of the two respondents, on the grounds that they are manifestly inadequate.
Held, per the Court, granting permission to appeal and allowing the appeal:
1.These are “rare and exceptional” cases for the purposes of Everett v The Queen (1994) 181 CLR 295; the applicant should be granted permission to appeal to enable this Court to establish and maintain adequate standards of punishment for crime.
2.The Magistrate erred in discharging the first respondent without conviction, given the serious nature of her offending and the requirement for general deterrence.
3.The Magistrate erred in making the sentences for the Cultivation and Trafficking charges of the second respondent totally concurrent.
4.The sentences imposed by the Magistrate are to be set aside and the respondents resentenced.

Controlled Substances Act 1984 (SA); Electricity Act 1996 (SA); Sentencing Act 2017 (SA), referred to.
Dinsdale v The Queen (2000) 202 CLR 321; Hili v The Queen (2010) 242 CLR 520; Police v Sherratt [2015] SASC 43; R v Buttigieg (2020) 352 FLR 170; R v Harkin (2011) 109 SASR 334; R v Kong [2013] SASCFC 15; R v Marien [2011] SASCFC 116; R v McGaffin (2010) 206 A Crim R 188 ; R v McIntosh [2017] SASCFC 87; R v Nemer (2003) 87 SASR 168 ; R v Peet [2018] SASCFC 91 ; R v Yousef (2005) 155 A Crim R 134, considered.

R v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] SASCA 79
Decision Date: 11 August 2022

CaseChat Overview and Summary

The Director of Public Prosecutions sought permission to appeal against the sentences imposed by a Magistrate on two respondents, Ms Nicole Taylor and Mr Peter Teekens. Ms Taylor pleaded guilty to cultivating a controlled plant for sale and was discharged without conviction, subject to a good behaviour bond. Mr Teekens pleaded guilty to cultivating a controlled plant for sale, trafficking in a commercial quantity of a controlled drug, and interfering with an electrical supply, receiving a suspended sentence of one year, 10 months, and two weeks imprisonment. The Director contended that both sentences were manifestly inadequate.

The Court was required to determine whether permission to appeal should be granted and, if so, whether the sentences imposed were manifestly inadequate. Specifically, the Court had to consider if the Magistrate erred in discharging Ms Taylor without conviction, given the seriousness of the offence and the need for general deterrence. It also had to assess whether the Magistrate erred in making the sentences for Mr Teekens' cultivation and trafficking charges entirely concurrent.

The Court granted permission to appeal, finding that these were "rare and exceptional" cases warranting appellate intervention to uphold adequate standards of punishment. The Court reasoned that the Magistrate erred in discharging Ms Taylor without conviction, as the gravity of her offending and the principle of general deterrence necessitated a conviction. Furthermore, the Court found that the Magistrate erred in imposing concurrent sentences for Mr Teekens' cultivation and trafficking offences, which should have been treated as distinct and serious matters.

Consequently, the Court allowed the appeal, set aside the sentences imposed by the Magistrate, and ordered that the respondents be resentenced.

Orders

Orders of the court

A police raid revealed hydroponically grown cannabis at several residential properties. Following proceedings in the Magistrates Court, five accused were sentenced.

The first respondent, Ms Nicole Taylor, pleaded guilty to Cultivating a Controlled Plant for Sale and was discharged without conviction by the Magistrate upon her entering into a bond to be of good behaviour. The second respondent, Mr Peter Teekens, pleaded guilty to Cultivating a Controlled Plant for Sale, Trafficking in a Commercial Quantity of a Controlled Drug and Interfering with an Electrical Supply. He was sentenced to a period of one year, 10 months and two weeks’ imprisonment, suspended upon his entering into a bond to be of good behaviour.

The Director of Public Prosecutions seeks permission to appeal the sentences of the two respondents, on the grounds that they are manifestly inadequate.

Held, per the Court, granting permission to appeal and allowing the appeal:

1. These are “rare and exceptional” cases for the purposes of Everett v The Queen (1994) 181 CLR 295; the applicant should be granted permission to appeal to enable this Court to establish and maintain adequate standards of punishment for crime.

2. The Magistrate erred in discharging the first respondent without conviction, given the serious nature of her offending and the requirement for general deterrence.

3. The Magistrate erred in making the sentences for the Cultivation and Trafficking charges of the second respondent totally concurrent.

4. The sentences imposed by the Magistrate are to be set aside and the respondents resentenced.

Background

Background to the litigation

On 14 January 2022, the Magistrate sentenced five of the accused, including the two respondents. For reasons that remain unclear, the prosecution, despite the charges and accused all appearing on one Information, did not allege any link between the accused nor the cannabis found at the various residential premises. The prosecution seek permission to appeal the sentences of the two respondents, on the ground that the sentences imposed are manifestly inadequate. Permission to appeal against the sentences imposed on the other three accused has not been sought.BackgroundFirst respondent (Taylor) On 18 June 2020, police attended at the home address of Ms Nicole Taylor (“Taylor”) and Mr Nicholas Teekens in Tanunda. Police searched a shed where they found three purpose-built grow rooms and a fourth room containing a water filtration system. Police located 18 cannabis plants inside the grow rooms in addition to 50 high wattage light globes, 45 light shades, 54 ballast boxes, seven electrical timers and a carbon filter. The respondent Taylor pleaded guilty to one count of Cultivating a Controlled Plant (cannabis) for Sale.[1] The prosecution accepted that Taylor permitted the premises to be used for the purposes of cultivating cannabis, but was not otherwise actively involved in the cultivation. Taylor’s offending occurred in the context of the offending of her then partner, Mr Nicholas Teekens. Mr Nicholas Teekens pleaded guilty to one count of Cultivating a Controlled Plant (cannabis) for Sale and one count of Interfering with an Electrical Supply.[2] The maximum penalty for Cultivating a Controlled Plant for Sale is a fine of $50,000 or imprisonment for 15 years, or both. The Magistrate discharged Taylor without conviction upon her entering into a bond in the sum of $1,000 to be of good behaviour for a period of three years. [1] Contrary to s 33B(3) of the Controlled Substances Act 1984.[2] The South Australian Director of Public Prosecutions has not appealed his sentence. The applicant complains that the sentence is manifestly inadequate. Second respondent (Teekens) On 24 June 2020, police attended an address at Cockatoo Valley, being the residential address of Mr Peter Teekens (“Teekens”). The police searched a shed on the premises and located five purpose-built grow rooms. They seized nine cannabis plants and 2.33 kilograms of loose cannabis plant material located on a drying rack. In addition, the police seized 55 high wattage light globes, 51 light shades, 50 ballast boxes, 16 electrical timers and one carbon filter. The electricity meter at the address was also being bypassed. The respondent Teekens pleaded guilty to one count each of Cultivating a Controlled Plant for Sale (“Cultivation Charge”), Trafficking in a Commercial Quantity of a Controlled Drug, (“Trafficking Charge”) and Interfering with an Electricity Supply.[3][3] Contrary to ss 33B(3) and 32(2) of the Controlled Substances Act 1984 and s 84(1)(b) of the Electricity Act 1996 respectively.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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